COMMONWEALTH of Pennsylvania, Appellee, v. Mark BRACALIELLY, Appellant. COMMONWEALTH of Pennsylvania, Appellee, v. Raymond STARR, Appellant.
Nos. 74 W.D. Appeal Dkt. 1993, 13
Supreme Court of Pennsylvania
May 16, 1995
Rehearing Denied July 19, 1995
658 A.2d 755
Lynn Erickson, Leesport, for appellant in No. 13.
David M. McGlaughlin, Newman & McGlaughlin, Philadelphia, for amicus curiae Pennsylvania Ass‘n of Crim. Defense Lawyers in No. 13.
Robert E. Colville, Dist. Atty., Claire C. Capristo, Deputy Dist. Atty., Kemal A. Mericli, Kevin F. McCarthy, Asst. Dist. Atty., for appellee in No. 74.
Claude A. Lord Shields, Dist. Atty., Jacqueline L. Russell, Asst. Dist. Atty., for appellee in No. 13.
Before NIX, C.J., and FLAHERTY, ZAPPALA, CAPPY, CASTILLE and MONTEMURO, JJ.
MONTEMURO, Justice.
This consolidated appeal requires us to determine whether we should bar the instant prosecutions. Appellants contend that because these prosecutions arise from conduct which forms part of the same criminal episode on which previous prosecutions were based,
Commonwealth v. Bracalielly
This case involves various drug related offenses which occurred over the period from August 7 to August 20, 1990. During this period, Mark Bracalielly (“Bracalielly“) allegedly participated in four transactions involving controlled substances. Two of these transactions occurred in Allegheny County and two occurred in Butler County. Furthermore, on August 20, 1990, the police obtained a warrant, and, upon
On August 4, 1990, Detective Byers, a member of the North Hills Drug Task Force, was contacted by Michael Deardon, a confidential informant who had been reliable in the past, concerning the possibility of investigating Bracalielly. At this time, Bracalielly resided at 213 Henderson Street in the North Side area of Pittsburgh. Deardon had arranged to buy one eighth of an ounce of cocaine from Bracalielly at the McKnight Seibert Shopping Center in Ross Township. Affidavit For Criminal Complaint of Dets. Byers & Herb, 9/20/90 (violation date 8/7/90).
August 7, 1990—Allegheny County
On August 7, 1990, Deardon met with Bracalielly at Maggie Mae‘s in the McKnight Seibert Shopping Center. Several detectives maintained surveillance inside and outside the restaurant. Deardon and Bracalielly exited the restaurant and proceeded to a grey Chevrolet Cavalier, where Deardon purchased 3.32 grams of cocaine from Bracalielly for $250. Id. Deardon then made arrangements to purchase one ounce of cocaine in the near future. Id.
Based on this transaction, the Commonwealth charged Bracalielly with one count each of possession of a controlled substance,1 possession with intent to deliver a controlled substance,2 delivery of a controlled substance,3 and criminal conspiracy.4 Allegheny County Criminal Action No. 9016136.
August 11, 1990—Butler County5
Butler County authorities began an independent investigation of Bracalielly, using the same informant. During the next
August 17, 1990—Allegheny County
On August 16, 1190, Deardon once again contacted Bracalielly at his home in Allegheny County. This time arrangements were made for Deardon to purchase one ounce of cocaine for $1,550. Affidavit For Criminal Complaint of Dets. Byers & Herb, 9/20/90 (violation date 8/17/90). The transaction occurred in the early morning hours of August 17, 1990, in Ross Township, Allegheny County. Id. Detective Byers accompanied Deardon while other officers maintained surveillance. Id. After the transaction, Deardon surrendered the cocaine to Detective Byers. Lab tests subsequently revealed the presence of 28.55 grams of cocaine. Id.
The Commonwealth once again charged Bracalielly with one count each of possession of a controlled substance,9 possession with intent to deliver a controlled substance,10 delivery of a
August 20, 1990—Butler County
On August 20, 1990, Deardon again contacted Bracalielly at his Allegheny County home to set up a “reverse sting.”13 (N.T. 8/29/91 at 10). Bracalielly met Deardon in Allegheny County and drove him to the Cranberry Mall in Butler County. Id. at 19. At the Cranberry Mall, Bracalielly was arrested after attempting to purchase one quarter pound of cocaine for $4,000 from Detective Evanson of the Cranberry Township Police. Bureau of Narcotics Investigations and Drug Control Memorandum Report, attached as Exhibit J to Defendant‘s Memorandum in Support of Motion to Quash. The Commonwealth charged Bracalielly with possession of a controlled substance,14 possession with intent to deliver a controlled substance,15 criminal conspiracy,16 possession of an instrument of a crime,17 and possession of an offensive weapon.18 Butler County Criminal Action No. B1055 of 1990, attached as Exhibit E to Defendant‘s Memorandum in Support of Motion to Quash.
August 20, 1990—Allegheny County
After his arrest, Bracalielly provided statements divulging the presence of thirty-two grams of cocaine and a quantity of L.S.D. at his Allegheny County home. Affidavit of Barbara Roberts, attached as Exhibit G to Defendant‘s Memorandum in Support of Motion to Quash. Based on this information and corroborating statements by Deardon, a search warrant was
Procedural History
Bracalielly was charged in Butler County for the crimes that occurred there on August 11, 1990, and August 20, 1990. On June 13, 1991, Bracalielly entered pleas to the charges contained in the Butler County criminal actions. (N.T. 8/29/91 at 14).
On August 14, 1991, Bracalielly filed an omnibus pretrial motion in Allegheny County contending that his convictions in Butler County were for offenses arising out of the same criminal conduct as the Allegheny County charges and therefore, the Allegheny County charges were barred by
Bracalielly appealed and the Commonwealth cross-appealed. The Superior Court reversed the trial court order quashing the charges resulting from the search of Bracalielly‘s residence on August 20, and affirmed the trial court‘s denial of
Commonwealth v. Starr
On June 22, 1990, Raymond Starr (“Starr“) was arrested under two separate criminal complaints alleging the same violations of the Controlled Substance, Drug, Device, and Cosmetic Act.
On January 5, 1990, Starr was found not guilty of the charges resulting from the February 8, 1989, incident. On February 23, 1990, Starr filed a Motion to Dismiss the charges arising from the incident on January 24, 1989. Starr argued that both transactions were part of the same criminal episode and therefore,
18 Pa.C.S. § 110
Before addressing the merits of these cases, we must determine whether these appeals are properly before this Court. The orders denying both Bracalielly‘s and Starr‘s
The relevant portions of
§ 110. When prosecution barred by former prosecution for different offense
Although a prosecution is for a violation of a different provision of the statutes than a former prosecution or is based on different facts, it is barred by such former prosecution under the following circumstances:
(1) The former prosecution resulted in an acquittal or in a conviction as defined in Section 109 of this title (relating to when prosecution barred by former prosecution for same offense) and the subsequent prosecution is for:
*
*
*
*
*
*
(ii) any offense based on the same conduct or arising from the same criminal episode, if such offense was known to the appropriate prosecuting officer at the time of the commencement of the first trial and was within the jurisdiction of a single court unless the court ordered a separate trial of the charge of such offense;
*
*
*
*
*
*
designed to serve two distinct policy considerations: (1) to protect a person accused of crimes from governmental harassment of being forced to undergo successive trials for offenses stemming from the same criminal episode; and (2) as a matter of judicial administration and economy, to assure finality without unduly burdening the judicial process by repetitious litigation.
Id. at 489, 458 A.2d at 180 (citations omitted). “By requiring compulsory joinder of all charges arising from a single ‘transaction,’ a defendant need only once ‘run the gauntlet’ and confront the ‘awesome resources of the state.‘” Commonwealth v. Campana, (Campana I), 452 Pa. 233, 251, 304 A.2d 432, 440 (1973).
Section 110(1)(ii) will only bar the instant prosecutions if: (1) the former prosecutions resulted in an acquittal or in a conviction; (2) the instant prosecutions are based on the same criminal conduct or arose from the same criminal episode as the former prosecutions; (3) the prosecutor was aware of the instant charges before the commencement of the trials on the former charges; and (4) the instant charges and the former charges were within the jurisdiction of a single court.
Bracalielly plead guilty to charges in Butler County (N.T. 8/29/91 at 14, 25). A guilty plea constitutes a conviction for purposes of pursuing further prosecution pursuant to
With respect to pre-trial knowledge of the additional pending charges, the Commonwealth never disputed that the pros-
Analyzing the second requirement, whether the instant prosecutions are based on the same criminal conduct or arose from the same criminal episode as the former prosecutions, proves significantly more difficult. The term “same criminal episode” can be amorphous and troublesome to apply. The seminal decision discussing the term “same criminal episode” is Commonwealth v. Hude, 500 Pa. 482, 458 A.2d 177 (1983).
In Hude, the defendant (Hude) was arrested and charged with twenty counts of possession and delivery of marijuana and one count of corruption of a minor. These charges arose from a series of sales to the same individual which allegedly occurred between October 1974 and January 1975. After nine possession and delivery counts were dismissed, the Commonwealth brought Hude to trial on three of the remaining possession and delivery charges and the corruption of a minor charge. Hude was acquitted. The Commonwealth then brought Hude to trial on the remaining eight possession and delivery charges.
We held that these remaining eight charges arose from conduct which formed part of the same criminal episode as the conduct on which the initial three possession and delivery charges were based. Therefore, we concluded that the Section 110 barred the second attempt at prosecution and quashed the subsequent indictments. We reasoned:
[t]o interpret the “single criminal episode” test in such a manner as to permit successive trials for each of the alleged transactions would clearly be offensive to the prohibition
against successive prosecutions as well as an unjustifiable expenditure of judicial resources. The interpretation of the term “single criminal episode” must not be approached from a hypertechnical and rigid perspective which defeats the purposes for which it was created. Thus, where a number of charges are logically and/or temporally related and share common issues of law and fact, a single criminal episode exists, and separate trials would involve substantial duplication and waste of judicial resources. In such cases, failure to consolidate will bar successive prosecutions.
Hude at 494, 458 A.2d at 183.
To determine whether various acts constitute a single criminal episode, Hude requires us to consider two factors: (1) the logical relationship between the acts and (2) the temporal relationship between the acts. Hude at 494, 458 A.2d at 183. While considering these factors, we must remember not to interpret the term “same criminal episode” in a “hypertechnical and rigid perspective which defeats the purpose for which it was created.” Id. However, in determining if the “logical relationship” prong of the test has been met, we must also be aware that a mere de minimis duplication of factual and legal issues is insufficient to establish a logical relationship between offenses. Rather what is required is a substantial duplication of issues of law and fact. Hude at 491, 458 A.2d at 181, (quoting Comment, Commonwealth v. Campana and Section 110 of the Crimes Code: Fraternal Twins, 35 U.Pitt.L.Rev. 275, 286-87 (1973)).28
In Hude, we found that such substantial duplication had occurred. We did not, however, reach this conclusion by merely cataloguing simple factual similarities or differences between the various offenses with which the defendant was charged. Rather, we found that these offenses presented substantial duplication of issues of law and fact because the
The Superior Court, in concluding that Bracalielly‘s acts were not part of the “same criminal episode,” stated:
[T]he participants and the coconspirators changed; the quantity and cost of the drugs differed; the sales occurred in different locations; and two different police departments were involved in separate undercover investigations.
Superior Court Memorandum Op. at 11. However, this is the type of rigid hypertechnical analysis which Hude warns against. In any string of drug sales, the quantity, cost, and location will differ. Hude itself determined that drug sales occurring on different dates and involving varying amounts of marijuana (and thus varying prices) was insufficient to escape the conclusion that the sales were part of the same criminal episode. Hude at 493, 458 A.2d at 182-3.
The critical factor which distinguishes this case from Hude and mandates the conclusion that the transactions in Butler County and Allegheny County were not part of the same criminal episode is the independent involvement of two distinct law enforcement entities, for it prevents the substantial duplication of issues of law and fact required under Hude for the transactions to be deemed logically related. Both Butler and Allegheny County law enforcement authorities were conducting separate undercover investigations of Bracalielly. However, no law enforcement officer from Allegheny County participated in the Butler County transactions, and no law enforcement officer from Butler County participated in
Since no logical relationship exists between the Butler County and Allegheny County transactions, the Allegheny County charges were not part of the “same criminal conduct” as those in Butler County and, therefore,
It is a well settled principle that appellate courts may only consider facts which have been duly certified in the record on appeal. Murphy v. Murphy, 410 Pa.Super. 146, 155, 599 A.2d 647, 652 (1991). See also Commonwealth v. Young, 456 Pa. 102, 115, 317 A.2d 258, 264 (1974) (only facts which appear in official record may be considered by a court). An item does not become part of the certified record by simply copying it and including it in the reproduced record. Murphy at 155, 599 A.2d at 652 (citing Dorn v. Stanhope Steel, Inc., 368 Pa.Super. 557, 563 n. 1, 534 A.2d 798, 801 n. 1 (1987), alloc. denied, 518 Pa. 656, 544 A.2d 1342 (1988)). Therefore, we will not consider the preliminary hearing transcript which is found in Starr‘s reproduced record, but not in the certified record.
Starr argues that even if we ignore the preliminary hearing transcript, there are sufficient facts of record to bring this case squarely within Hude. Starr then cites to numerous “identities of fact,” including: (1) both criminal complaints were filed on warrants issued thereon on the same day by the same district justice; (2) upon his arrest, he appeared before the same district justice on both complaints; (3) he was preliminarily arraigned before the same district justice; (4) the criminal informations were almost identical except for the dates, quantities, and prices involved; and (5) a single Notice of Arraignment addressed both term numbers. Through these and other similarities in treatment, Starr claims that the
However, such similarities do not prove the transactions were part of the same criminal episode. They fail to demonstrate the required logical or temporal relationship between the acts. Hude requires more. Starr must show how the two transactions themselves were related; not merely how their treatment was related. Alleging that the Commonwealth treated the cases as one is an insufficient nexus. Therefore, upon the facts of the certified record, we are constrained to conclude that the two transactions were not part of the same criminal episode.
Because we conclude that neither Commonwealth v. Bracalielly nor Commonwealth v. Starr involve drug transactions which constitute a “single criminal episode,” we find that Section 110 does not bar the instant prosecutions of either Bracalielly or Starr. Therefore, we need not address the issue of whether the violations in each case were within the jurisdiction of a single court.
In conclusion, Section 110 does not bar the charges against Bracalielly brought in Allegheny County. They were not part of the same criminal episode as those brought in Butler County and we affirm the order of the Superior Court in Commonwealth v. Bracalielly. Similarly, Section 110 does not bar prosecution of Starr for the charges arising from the January 24 incident and we therefore affirm the order of the Superior Court in Commonwealth v. Starr.
PAPADAKOS, J., did not participate in the decision of Commonwealth v. Mark Bracalielly, No. 74 W.D. Appeal Dkt. 1993.
ZAPPALA, J., files a Concurring and Dissenting Opinion in which CAPPY, J., joins.
MONTEMURO, J., is sitting by designation.
I respectfully dissent from the decision of Commonwealth v. Bracalielly. As the majority notes, the principal case defining what constitutes a single criminal episode is Commonwealth v. Hude. In Hude, we applied Section 110 in determining that eleven charges of possession and delivery arising out of a series of transactions were so logically and temporally related as to require that all the charges be tried together. We relied on the fact that the offenses occurred in the same place over a four month period, were arranged by the same person with the same buyer of similar amounts of drugs, and no additional or corroborative testimony would have been required in a second trial.
Hude requires examination of two factors to determine whether various acts constitute one criminal episode: (1) the logical relationship between the acts and (2) the temporal relationship between the acts. In the instant case, the four transactions occurred within a thirteen day period, and the same confidential informant, Michael Deardon, arranged each transaction by calling Bracalielly at his home in Allegheny County. Also, Bracalielly testified that during each transaction, a future transaction was discussed (R. 48a). Thus, the facts are analogous to those in Hude where a temporal and logical relationship was found.
The majority finds that the critical factor which distinguishes this case from Hude is the “independent” involvement of the two distinct law enforcement agencies of Butler County and Allegheny County. Maj. op. at 472. It emphasizes the fact that these authorities were conducting separate undercover investigations of Bracalielly. I question the importance the majority assigns to this factor and whether the record supports the finding that the investigations were independent.
In footnote twenty-nine, the majority quotes testimony given by Detective Evanson of the Cranberry Township (Butler County) Police. The majority cites the portion of the testimony establishing that the informant merely advised Detective Evanson that he was working with Allegheny County authori-
The majority seemingly creates a per se rule that when two law enforcement authorities investigate a single defendant, the offenses cannot be one criminal episode. I disagree. As noted, the proper analysis is whether the acts are temporally and logically related. The fact that two different police departments investigated a single defendant does not, in itself, establish either requirement. The evidence presented in this case clearly establishes one criminal episode notwithstanding the fact that two police departments were involved.
Having determined that the offenses in Bracalielly constitute one criminal episode, we must examine the fourth prong of § 110, that the “instant charges and the former charges were within the jurisdiction of a single court.”
The Commonwealth relies on Superior Court cases which interpret the “within the jurisdiction of a single court” language of § 110 to mean venue.4 The term “venue,” however,
In Commonwealth v. Beatty, 500 Pa. 284, 455 A.2d 1194 (1983), we held that § 110 did not bar the prosecution of an aggravated assault charge when the defendant had previously pled guilty to the summary offense of failing to identify himself at the scene of an accident. Our Court distinguished the two offenses by asserting that one was a summary offense within the jurisdiction of the district justice, while the other was within the jurisdiction of the court of common pleas. Thus, the offenses were not “within the jurisdiction of a single court.”
We extended this holding in Commonwealth v. Taylor, 513 Pa. 547, 522 A.2d 37 (1987), to include summary offenses under the Crimes Code, again holding that the district justice had original jurisdiction over the summary offense of harass-
Thus, when considering the purposes underlying the statute, I read “jurisdiction” in § 110 to mean just that. The fact that multiple offenses stemming from one criminal episode cross a county line should not require the Commonwealth to expend resources on two trials and thereby submit the defendant to successive prosecutions. To hold otherwise would be inconsistent with the rationale of § 110.5
It must be remembered that the other requirements of § 110 must still be satisfied in order to bar a subsequent prosecution. Obviously, the former prosecution must have resulted in an acquittal or a conviction, there must be one criminal episode, and the prosecutor must be aware of the instant charges before the commencement of the trial on the former charges.6 The jurisdictional requirement of § 110 would then ensure that a single court would be competent to hear the matter.
Even if one rejects this interpretation and finds that “jurisdiction” in § 110 means venue, the instant charges are still barred. The question to be answered is not necessarily whether Butler County had jurisdiction over all the offenses, but whether the four transactions were within the jurisdiction of a single court. The Crimes Code provides that if a person conspires to commit a number of crimes, he is guilty of only one conspiracy so long as such multiple crimes are the object of the same agreement or continuous conspiratorial relationship.
In conclusion, because the requirements of § 110 have been satisfied, I would reverse the judgment of the Superior Court affirming the denial of Bracalielly‘s motion to quash.
Regarding Commonwealth v. Starr, I concur only in the result reached by the majority. I agree that the evidence of record was not sufficient to establish that the transactions there arose from one criminal episode. I reach this conclusion, however, solely because the evidence establishing that the same confidential informant facilitated both transactions was not part of the certified record and therefore is not to be considered in the analysis. Had the preliminary hearing testimony been made a part of the certified record, the required logical relationship would have clearly been established.
CAPPY, J., joins this Concurring and Dissenting Opinion.
Notes
(N.T. 6/12/91 (Butler County) at 9) attached as Exhibit H to Defendant‘s Memorandum in Support of Motion to Quash. Thus, although Butler County authorities were aware of the investigation in Allegheny County, they were in no way involved in that investigation.A. I believe [Deardon] did. I believe he advised me of—I can‘t remember the dates, but if I recall properly he was working with another agency and I do believe he mentioned something about having a deal set up with that agency and Mr. Bracalielly.
Q. And you indicated that you believe he you mentioned that he had a deal set up?
A. Yes.
Q. Did he ever mention that he had a deal?
A. Tell you the truth, I can‘t recall.
Q. So you can‘t recall if this confidential informant was involved in what we have termed a deal prior to August 11?
A. I would say that my conversation with him I can‘t recall as to him indicating that the deal was completed or not. I really wasn‘t concerned at that point because that was an investigation in Allegheny County.